Judgment no. 18/2017/HNGD-ST dated september 7, 2017 on marriage and family dispute

PEOPLE'S COURT OF BAC GIANG PROVINCE

JUDGMENT NO. 18/2017/HNGD-ST DATED SEPTEMBER 7, 2017 ON MARRIAGE AND FAMILY DISPUTE

On September 7, 2017 at the headquarters of the People's Court of Bac Giang province, the first-instance hearing is conducted in public to hear the case No. 15/2017/TLST-HNGĐ dated March 29, 2017 on marriage and family dispute under Decision to Bring the Case to Trial No. 15/2017/QDXX-ST dated August 7, 2017 between the litigants:

1. Plaintiff:  Mrs. Than Thi T, born in 1983. (No appearance in court)

Address: TD village, TL commune, YD district, Bac Giang province.

Current residence: Cyprus.

Authorized representative:  Mr. Trieu Hanh H - Lawyer of TH law office (file the lawsuit, pay court fee advance, receive, and transfer documents and evidence during the settlement of the case).

2. Defendant:  Mr. Nguyen Van N, born in 1982. (Appearance in court)

Address: TD village, TL commune, YD district, Bac Giang province

FACTUAL AND PROCEDURAL BACKGROUND

Representation of Mrs. Than Thi T in the lawsuit petition and voluntary statement: She and Mr. Nguyen Van N registered their marriage on October 31, 2003 with the People's Committee of TL commune, YD district, Bac Giang province.  Both parties had the freedom to get into courtship before getting married voluntarily.  6 months after the marriage, they moved out to live separately on the land that was sold by her uncle-in-law. She had to go to work to pay the mortgage because she could only pay half of it, and Mr. N came home drunk all day, cursing and beating her.

In the evening of the 2nd day of the Lunar New Year in 2008, Mr. N got drunk and beat her. Because she could not bear such a married life, she went to work abroad.  On February 27, 2009, she went to work in Cyprus. At that time, Mr. N stayed at home, neither mind doing business nor taking care of the children, but only drank liquor.  On July 17, 2010 Mr. N had an accident, her parents-in-law called to ask her to send money back to pay for Mr. N’s treatment. She had to borrow 2000 EUR to cover that treatment cost. On July 18, 2011 her husband had an accident again due to drunkenness, her brother-in-law called to say that he urgently needed 6000EUR to take her husband to the hospital, she replied that she did not have that much money and still had not paid off the last debt. Her parents-in-law scolded her for that.  Since she went to work abroad, Mr. N did not call to ask how she has been doing or encourage her, but only drink alcohol, refuse to work; her husband's family only called to ask her to send money home. If she did not send money, she would be scolded.  Now that she has determined that their marital bond broke, she proposes to the Court to grant her a divorce from Mr. N.

With reference to common children: She and her husband have two common children: Nguyen Van H1, born on March 9, 2005 and Nguyen Van H2, born on September 27, 2007. Currently, they are still living with her biological parents in TD village, TL commune, YD district, Bac Giang province.  She still sends money back to support her children; she has not asked the Court to resolve the custody of common children.

With reference to assets and liabilities: She has not asked the Court to settle the division of marital property in this case.

Because she is working in the Republic of Cyprus, she requests her absentia in the hearings on public access to evidence and mediation and in the court hearings of the case.  She also authorizes lawyer Trieu Hanh H to file a lawsuit, receive the court papers, and notify her of them.

Representation of defendant, Mr. Nguyen Van N: He and Mrs. T got married in 2003; they were free to get into courtship before getting married. They registered marriage with the People's Committee of TL Commune.  They had a happy married life until 2009 when she went to work abroad Cyprus. At first, Ms. T sometimes called to check on her husband and children. In 2011, he had a motorbike accident and could not walk. Since then, Ms. T barely makes a call for him.  Currently, Ms. T is no longer in contact with him.  In the minutes of his statement dated April 20, 2017 and his request dated April 28, 2017, he agreed to divorce, but in the subsequent statement dated June 2, 2017 he changed his words that he did not agree to divorce Mrs. anymore because he thought that there was no conflict between them.

With reference to common children: In the statement taken on April 20, 2017, Mr. N states that if he had to get a divorce, he would like to claim custody of both common children, Nguyen Van H1, born on March 9, 2005 and Nguyen Van H2, born on September 27, 2007, and does not ask Ms. T for child support.  However, later, in the minutes of statement dated June 2, 2017, Mr. N changed his state. If he has to get the divorce, he does not ask the Court to settle the common child's part.

With reference to assets and liabilities: None, no further request.

Representation of Mr. Nguyen Van M at today’s court hearing: He does not agree to divorce Mrs. T because there is no conflict between him and Mrs. T. He determines that their marital bond is still there; their marriage has not fell into bad situation. Therefore, he does not agree to divorce. Because he does not agree to divorce, he does not ask for the settlement of common children and does not ask for the settlement of assets and debts.

The representative of the People's Procuracy of Bac Giang province states that the judge has complied with the civil procedure law from the time of acceptance to the trial. At today's trial, the Trial Panel has strictly complied with the Civil Procedure Code. The litigants has complied and properly performed the rights and obligations of the litigants as provided for in the Civil Procedure Code. The Procuracy has no recommendations.

With reference to content: Propose the application of Clause 1, Article 51, Article 56 of the Law on Marriage and Family 2014 in Viet Nam to grant Mrs. Than Thi T a divorce from Mr. Nguyen Van N.

JUDGEMENT OF THE COURT

After taking account of all documents and evidences available in the case file. After discussion and deliberation. Judgment of Trial Panel:

[1]. In terms of court procedures: Mrs. Than Thi T, who is working in Cyprus, has filed a request for trial in her absence, so the Trial Panel, based on Clause 1, Article 228 of the Civil Procedure Code in Viet Nam, tries the case in her absence.

[2]. Regarding jurisdiction:  Mrs. Than Thi T, the plaintiff, is residing in Cyprus and has filed for divorce from Mr. Nguyen Van N with permanent residence in TD village, TL commune, YD district, Bac Giang province.  Thus, this is a marriage and family dispute case involving foreign element falling under the jurisdiction of the People's Court of Bac Giang province according to Clause 1, Article 28; Clause 3, Article 35; Article 37, Clause 1 Article 38 of Civil Procedure Code.

[3]. Considering the request for divorce of Mrs. Than Thi T and Mr. Nguyen Van N, it is found that: Mrs. Than Thi T and Mr. Nguyen Van N got married on October 31, 2003, with marriage registration at the People's Committee of TL Commune, YD district, Bac Giang province. Both parties had the freedom to get into courtship before getting married voluntarily. This is a legal marriage. They were in a happy marriage at first. In 2009, Mrs. T went to work abroad. At first, the husband and wife often contacted each other, since 2011 they have not been in contact with each other.  Since Mrs. T went to work in the Republic of Cyprus, she never returned home, and they lived apart and did not care for each other anymore.  Mr. N does not agree to divorce Mrs. T because he determines that he still has strings attached to Mrs. T; however, he could not give any evidence. Mr. N also states that since 2011, Mrs. T has not been in touch with him. The Panel finds that the marital conflict between Mrs. T and Mr. N was serious, the duration of marriage cannot last longer, and the purpose of marriage is not achieved.  Pursuant to Articles 51, 53, and 56 of the Law on Marriage and Family. Accept the petition of Mrs. Than Thi T. Grant Mrs. Than Thi T a divorce from Mr. Nguyen Van N.

[4]. With reference to common children: Mrs. T has not asked the Court to settle the issue of common children.  In the record of statement as well as at the court, Mr. N determines that he does not agree to divorce, so he does not ask the Court to settle issue about the common children.  Therefore, the Trial Panel does not consider the common child.

[5]. With reference to common property: Mrs. T and Mr. N do not ask the Court to settle, so the Trial Panel will not consider it.

[6] Regarding court fees:  Mrs. Than Thi T has to pay 300,000 VND for first-instance marriage and family court fee as prescribed in Clause 4, Article 147 of the Civil Procedure Code; and Clause 5, Article 27 of Resolution 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of National Assembly on collection, exemption, reduction, payment, management and use of court fees and charges. which is deducted from the advance of court fee paid to Department of Civil Judgment Enforcement of Bac Giang province? It is confirmed that she paid the court fee in full.

The litigants have the right to appeal the judgment according to Article 271; Article 273 and Article 479 of the Civil Procedure Code.

For the foregoing reasons;

DISPOSITION

Pursuant to Clause 1 Article 51, Clause 1 Article 53, Clause 1 Article 56, Article 123 of the Law on Marriage and Family; Clause 1 Article 28, Clause 3 Article 35, Clause 1 Article 38, Clause 4 Article 147, Clause 1 Article 288, Article 271, Article 273, Article 238; Clause 2, Article 479 of the Civil Procedure Code; Clause 5, Article 27 of Resolution 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of National Assembly on collection, exemption, reduction, payment, management and use of court fees and charges

Hereby judge:

1. Regarding conjugal relationship: Mrs. Than Thi T is grant a divorce from Mr. Nguyen Van N.

2. With reference to court fee: Mrs. Nguyen Thi Minh T has to bear VND 300,000 (Three hundred thousand dong) for the first-instance civil court fee, but is deducted from the amount of VND 300,000 (Three hundred thousand dong) already paid in advance according to the receipt No. AA/2010/000479 dated March 29, 2017 at the Department of Civil Judgment Enforcement of Bac Giang province.

Mr. Nguyen Van N is entitled to appeal this judgment within 15 days from the date of pronouncement.

Than Thi T, who is residing abroad and absent from the court hearing, has a period of 1 month for appealing the judgment from the date on which the judgment is duly served.

The first instance trial is publicly conducted.